Oil Boom Raises Safety Concerns for Whistleblower Railworker

Kari Lydersen

With trains transporting much of the oil from North Dakota's shale, some railroad workers say the law isn't doing enough to protect whistleblowers. (Ron Reiring / Wikimedia Commons)

Hydraulic frac­tur­ing, or frack­ing,” has trig­gered an oil boom in North Dako­ta: The rel­a­tive­ly new tech­nol­o­gy has made vast reserves of oil pre­vi­ous­ly locked up in the state’s Bakken shale for­ma­tions acces­si­ble to drillers. How­ev­er, there aren’t enough pipelines in the region to trans­port this immense quan­ti­ty of oil to oth­er states to be refined into gaso­line. So instead, com­pa­nies have cho­sen to trans­port the high­ly flam­ma­ble and tox­ic crude oil by rail­road. This has led to some head­line-grab­bing dis­as­ters, includ­ing the explo­sion of a train car­ry­ing Bakken oil in Lac-Mégan­tic, Québec that killed 47 peo­ple in July 2013.

Because Bakken oil is more com­bustible and cor­ro­sive than tra­di­tion­al crude, the fed­er­al gov­ern­ment has warned com­pa­nies about the risks of ship­ping it by train. The indus­try has also been under pub­lic and Con­gres­sion­al pres­sure to devel­op new safe­ty pro­ce­dures.

In addi­tion to insti­tut­ing speed restric­tions and rerout­ing trains around pop­u­lat­ed areas, rail­road work­ers and their lawyers say the fed­er­al gov­ern­ment should step up its efforts to com­bat what they call anoth­er seri­ous threat to rail safe­ty: the retal­i­a­tion against whistle­blow­ers by man­agers and exec­u­tives in the industry.

As one of the biggest trans­porters of oil in the coun­try, the Burling­ton North­ern San­ta Fe Cor­po­ra­tion (BNSF) has been huge­ly impact­ed by the Bakken boom — which, some advo­cates say, could in turn be lead­ing to increased strug­gles between rail­work­ers and management.

One BNSF work­er, Cur­tis Rookaird, has spent the last four years embroiled in a con­flict that his lawyer, Bill Jung­bauer, says began with Rookaird voic­ing safe­ty con­cerns. What may at first appear a dis­pute between a con­duc­tor and his super­vi­sor, Jung­bauer says, is actu­al­ly a sym­bol of much deep­er and more trou­bling issues through­out the rail­road and, by exten­sion, the oil trans­port industry.

On Feb. 23, 2010, Rookaird was assigned to move tanker train cars — part of the vast net­work that car­ries crude oil from the Bakken all over the coun­try — to dif­fer­ent tracks in the Wash­ing­ton state BNSF rail yard where he worked. Rookaird set about doing tests on the cars’ brakes, a pro­ce­dure required by fed­er­al law, he tells In These Times. (A fed­er­al inves­ti­ga­tor quot­ed in court pro­ceed­ings last year agreed with this assessment.)

Rookaird was also check­ing for bro­ken axles, dam­aged wheels or oth­er prob­lems, he tells In These Times—a nec­es­sary pre­cau­tion, he says, because the cars had been sit­ting idle for four days.

Before Rookaird fin­ished the brake tests, he says, his super­vi­sor told him to stop and move on to anoth­er task. The tests were unnec­es­sary at that moment and would be done by a relief crew lat­er on, BNSF offi­cials stat­ed in fed­er­al pro­ceed­ings lat­er that year.

Rookaird refused to stop the tests, because he thought it was legal­ly and eth­i­cal­ly his respon­si­bil­i­ty to make sure they were done before he left the cars. He got into a ver­bal con­fronta­tion with his super­vi­sor about the issue, and the super­vi­sor asked him to leave. Though it was actu­al­ly 8:02 p.m., Rookaird clocked out at 8:30 p.m. He had been work­ing more than five hours, he told OSHA inves­ti­ga­tors lat­er, and he fig­ured he deserved cred­it for the dai­ly paid break that he had yet to take.

A month lat­er, Rookaird was fired over the inci­dent. He refused to do his assigned tasks … and false­ly report­ed the amount of time he worked,” BNSF spokesman Steven Fors­berg tells In These Times. But Rookaird has a dif­fer­ent view of the situation. 

I was told some­one will test [the cars], some­one else will inspect them. But I am not going to leave not know­ing what I left,” Rookaird main­tains. “[If] you have tank cars there with residue in them, it could be just as dan­ger­ous as tank cars that are loaded. When you set up or take off cars you have to check them.”

If you’re haul­ing oil and oth­er haz­ardous mate­ri­als, a sim­ple lit­tle derail­ment can cause a major explo­sion,” Jung­bauer explains. Although the cars Rookaird was check­ing weren’t full, he argues that it’s only a mat­ter of time, if employ­ees can’t do their jobs with­out fear of harass­ment and intimidation.”

In an April 2013 let­ter to the Occu­pa­tion­al Safe­ty and Health Admin­is­tra­tion (OSHA), BNSF wrote that they sus­pect­ed Rookaird had delib­er­ate­ly tried to reduce effi­cien­cy by intro­duc­ing what BNSF called unnec­es­sary” tasks — such as the brake tests. As BNSF attor­ney Andrea Hyatt not­ed in the let­ter, the com­pa­ny had recent­ly imple­ment­ed sched­ule changes that elim­i­nat­ed numer­ous over­time hours that had been earn­ing Rookaird an addi­tion­al $800 a week. Hyatt said Rookaird was engaged in an inten­tion­al work slow-down meant to protest the sched­ule change and col­lect over­time pay.

That was not his motive, Rookaird tells In These Times. Rather, he felt he would be break­ing the law and act­ing irre­spon­si­bly if he did not do the brake tests. And he believes he was retal­i­at­ed against for draw­ing atten­tion to a safe­ty hazard.

In July 2010, Rookaird filed a com­plaint with the fed­er­al gov­ern­ment accus­ing BNSF of retal­i­a­tion. In a process out­lined by the Fed­er­al Rail­way Act, an arbi­tra­tion pan­el con­sid­ered his case and ruled in BNSF’s favor in July 2011. But then on Sept. 18, 2013, OSHA issued a detailed report sup­port­ing Rookaird and order­ing BNSF to pay him more than $110,000 in com­pen­sato­ry dam­ages and $25,000 in puni­tive dam­ages and back pay in addi­tion to rehir­ing him.

Five months lat­er, how­ev­er, Rookaird says he’s still nei­ther been paid nor rehired. BNSF tells In These Times the com­pa­ny does not plan to rein­state him until a fed­er­al judge has reviewed the case. The com­pa­ny has already appealed OSHA’s deci­sion in fed­er­al court, Fors­berg says, and a hear­ing is sched­uled for March.

Mean­while, Rookaird is in the process of fil­ing his own law­suit in fed­er­al court to try to force BNSF to fol­low OSHA’s orders, Jung­bauer says.

After los­ing his rail­road job, Rookaird worked for a year and a half dri­ving a truck in oil coun­try in North Dako­ta, far away from his fam­i­ly. Now he is dri­ving a fuel truck in Wash­ing­ton, earn­ing much less than he had at BNSF. Rookaird and his wife Kel­ly say their house is in fore­clo­sure pro­ceed­ings and they are strug­gling to sup­port the two nine-year-old boys they adopt­ed from Rus­sia. Kel­ly says she’s unable to afford nec­es­sary eye surgery. They can see first­hand why many rail­road work­ers could be dis­suad­ed from com­ing for­ward with complaints. 

You feel like you should not report these safe­ty prob­lems, even injuries, because you’ll end up unem­ployed, dri­ven out of your home, home­less,” says Rookaird.

BNSF’s Fors­berg says, how­ev­er, that the com­pa­ny has spe­cif­ic poli­cies pro­hibit­ing retal­i­a­tion against whistleblowers.”

Employ­ees are both encour­aged and required to report safe­ty con­cerns,” Fors­berg adds. BNSF pro­vides them with mul­ti­ple means to do so, includ­ing call­ing a 24-hour employ­ee hot­line, turn­ing in a sim­ple form, or con­tact­ing a Divi­sion Man­ag­er of Safe­ty or a local, union Safe­ty Assis­tant. An employ­ee can make any of these reports anony­mous­ly. Des­ig­nat­ed per­son­nel inves­ti­gate all safe­ty con­cerns and take appro­pri­ate action until the issue has been resolved.”

But Jung­bauer, who tes­ti­fied before Con­gress regard­ing the Fed­er­al Rail­road Safe­ty Act, which was passed in 1994 and updat­ed in 2007 to pro­tect rail­road whistle­blow­ers, says Rookaird’s sto­ry and oth­ers like it are symp­toms of a much larg­er threat to work­ers and the gen­er­al pub­lic. He feels like Rookaird’s case is a prime exam­ple of how the law doesn’t do enough to pro­tect employees.

This sto­ry is much big­ger than some local man­agers being unfair to some local peo­ple,” he says. There’s a sys­tem-wide attack on work­ers and work­ers’ rights. If a com­pa­ny is going to be so vile against its own work­ers in way they go after them, what does that mean for the public?”

I’m glad there’s all this oil in North Dako­ta, but if they’re going to ship it around the coun­try on BNSF tracks and if employ­ees can’t report safe­ty con­cerns with­out being retal­i­at­ed against, I’m wor­ried,” he con­tin­ues. And the coun­try should be worried.”

Kari Lyder­sen is a Chica­go-based reporter, author and jour­nal­ism instruc­tor, lead­ing the Social Jus­tice & Inves­tiga­tive spe­cial­iza­tion in the grad­u­ate pro­gram at North­west­ern Uni­ver­si­ty. She is the author of May­or 1%: Rahm Emanuel and the Rise of Chicago’s 99%.
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